R v. Weisz
[2008] QCA 313
•10 October 2008
SUPREME COURT OF QUEENSLAND
CITATION:
R v Weisz [2008] QCA 313
PARTIES:
R
v
WEISZ, John George
(appellant)FILE NO/S:
CA No 247 of 2007
SC No 887 of 2006DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
10 October 2008
DELIVERED AT:
Brisbane
HEARING DATE:
3 March 2008
JUDGES:
McMurdo P, Mackenzie AJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – defence admitted at trial that a man called Cullen killed the deceased person by stabbing him with a knife – prosecution admitted at trial that the appellant was not present at the killing – the prosecution case against the appellant relied on s 7(1)(b), s 7(1)(d) or s 8 Criminal Code – appellant and others discussed Cullen giving the deceased a lethal injection of drugs called a "hot shot" – the method of killing discussed prior to the offence was not the method ultimately used by Cullen – circumstantial evidence linking the appellant with Cullen – judge directed jury on s 7(1)(b), s 7(1)(d) and s 8 Criminal Code – whether it was open to the jury to find that the common unlawful purpose under s 8 was to do serious harm to the deceased by whatever means seemed appropriate to Cullen – whether the guilty verdict was unreasonable or cannot be supported having regard to the evidence
CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – STATUTORY PROVISIONS – CODE PROVISIONS – judge used term "the offence" in directing the jury on s 7(1)(b), s 7(1)(d), s 8 and s 9 Criminal Code – judge directed on s 9 after explaining s 7(1)(b) and s 7(1)(d) and before discussing s 8 – whether, in the light of s 2 Criminal Code, the judge ought to have particularised the act constituting "the offence" for the jury – whether the judge's directions were unclear as to how the jury could use s 9 – whether the judge misdirected the jury on s 7(1)(b), s 7(1)(d) or s 8 Criminal Code
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – Cullen gave two statements to the police that differed on some details of the killing – Cullen's second statement said he withheld information in the first statement because the appellant threatened him – prosecution did not rely on the evidence of threats as showing a consciousness of guilt on behalf of the appellant – defence counsel did not ask for the jury to be given an Edwards direction – whether an Edwards direction was appropriate
CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CORROBORATION – DIRECTION OF JURY – ADEQUACY OF WARNING – Cullen had made inconsistent statements to police – Cullen was an accomplice of the appellant on his evidence – Cullen was declared a hostile prosecution witness at trial – judge directed the jury that it would be dangerous for them to convict on Cullen's evidence unless it were corroborated by independent evidence – judge directed that lies told by the appellant in police interviews could not be used to infer guilt – whether the judge should have clearly identified all potential lies told by appellant which could be used to corroborate Cullen's evidence – whether such a direction would have been favourable to the defence
Criminal Code 1899 (Qld), s 2, s 7(1)(b), s 7(1)(d), s 8, s 9, s 632, s 668E(1)
Evidence Act 1977 (Qld), s 17The Queen v Barlow (1997) 188 CLR 1; [1997] HCA 19, considered
Conway v The Queen (2000) 98 FCR 204; [2000] FCA 461, applied
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, applied
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, distinguished
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied
R v Ancuta [1991] 2 Qd R 413; [1990] CCA 200, cited
R v Anderson and Morris [1966] 2 QB 110, cited
R v Bellino and Conte [1993] 1 Qd R 521; [1992] QCA 097, cited
R v Brien and Paterson [1999] 1 Qd R 634; [1998] QCA 70, cited
R v Johnston[2002] QCA 74, compared
R v Keenan[2007] QCA 440, distinguished
R v Smith (Wesley) [1963] 1 WLR 1200; [1963] 3 All ER 597, cited
Varley v R (1976) 51 ALJR 243, cited
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, appliedCOUNSEL:
P J Davis SC for the appellant
R G Martin SC for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: The appellant, John George Weisz, was convicted on 13 September 2007 after an eight day trial in the Supreme Court at Brisbane of murdering Daryl Graeme Swinton on 21 October 2004. He appeals against his conviction. Mr P J Davis SC, who appears for Weisz, contends that the trial judge erred in a number of ways. First, he submits the judge did not give any directions as to the use to be made of, and the limitations of, the evidence of Philip Gary Cullen that, after he gave his first statement to police, Weisz threatened him.[1] Mr Davis's second submission is that the judge did not adequately warn the jury about relying on Cullen's evidence in that they were not directed as to what evidence was, and was not, capable of corroborating it.[2] His third submission is that the judge did not give adequate directions to the jury in relation to s 7 and s 8 Criminal Code 1899 (Qld).[3] Mr Davis also contends Mr Weisz's conviction is unsafe and unsatisfactory as it was not open to the jury to convict him either under s 8; or s 7(b); or s 7(d) with the aid of s 9 Criminal Code.[4]
[1]Additional grounds of appeal 1 and 2.
[2]Additional ground of appeal 3.
[3]Additional ground of appeal 4.
[4]The original ground of appeal and additional ground 5.
The prosecution case was that Cullen murdered Swinton by intentionally killing him by stabbing him with a knife and that Cullen did this at the direction of Darren Flanagan, Michael Thompson and Weisz (sometimes known as "Yuckie Truckie") because Swinton was indebted to Flanagan for drug purchases. Weisz's trial proceeded only against him.
The defence made the following admissions. On 21 October 2004 at around 2.30 pm, at Munruben, Cullen murdered Swinton by stabbing him with a knife.[5] Records of Sunstate Travel in Maryborough show that on 14 October 2004 Swinton booked a bus ticket to travel from Maryborough to Brisbane on 15 October 2004.[6] Records of Sunstate Travel in Maryborough show that on 20 October 2004 a ticket for Swinton to fly from Maryborough to Brisbane on 21 October 2004 was paid for by Swinton's father, Graeme Swinton.[7] Toxicology records from blood taken from Swinton after his death show no traces of illegal drugs in his system.[8] The prosecution admitted that at the time of the murder Weisz was not present at the scene of the murder.[9]
The grounds of appeal relating to Cullen's evidence of Weisz's post-offence threats[10]
[5]Ex 1.
[6]Ex 4.
[7]Ex 4.
[8]Ex 4.
[9]Ex 1.
[10]Additional grounds of appeal 1 and 2.
Cullen pleaded guilty on 7 November 2006 to murdering Swinton on 21 October 2004 and was sentenced to mandatory life imprisonment. He was a key prosecution witness in Weisz's trial. Cullen provided two statements to police, the first on 15 November 2004 and the second on 1 December 2006. In both statements he admitted intentionally killing Swinton by stabbing him with a knife. Paragraph 4 of his second statement recorded:
"When providing my original statement I withheld this information because I was in fear of my safety, and scared for my life. I had continually received threats against myself and my family from Michael Thompson and Yuckie Truckie. I was and still (sic) in fear of these persons and afraid that they may try and seek some sort of revenge against me."
In his evidence at trial, Cullen claimed that, because of his long-term drug abuse, he could not recall the events surrounding his killing of Swinton. The primary judge did not accept his claim of lost memory, considered him an adverse witness and declared him hostile. Her Honour gave leave to the prosecutor, Mr Edwards, to cross-examine Cullen about the contents of his statement of 15 November 2004 "subject to any further application made by the defendant to exclude any parts of that statement on the basis that the prejudicial value outweighs the probative value." The statement was tendered.[11] Her Honour also reserved the issue of whether to give leave to Mr Edwards to cross-examine Cullen about his statement of 1 December 2006 because it related almost entirely to an alleged co-offender, "Thompson's involvement at the time of the killing and on that basis paragraph 4 … may be unfairly prejudicial … as the balance of the statement is unlikely otherwise to be relevant." Her Honour noted that, on the other hand, the prosecution should not split its case.
[11]Ex 2.
Counsel for Weisz at trial, Mr Nolan, foreshadowed that he might cross-examine on the statement of 1 December 2006. Mr Edwards indicated that, if so, he would tender the statement. Mr Nolan stated that he probably would cross-examine Cullen about his second statement because it showed that Weisz had given a later statement inconsistent with his first statement and this would benefit Weisz's case. Mr Nolan told the judge not to "worry about ruling on that. I can tell you now that in all probability I will cross-examine on every bit of it." If so, he said he would either tender it or ask Mr Edwards to tender it. Mr Edwards indicated that, in that eventuality, he would tender the statement.
(a)The statement of 15 November 2004 [12]
[12]In the quotations from this statement, the errors are as in the original.
In his statement of 15 November 2004, Cullen told police the following. He came to know Flanagan as a supplier of the drug known as "speed". Cullen often purchased speed from him in the Rocklea area, usually two to three times a week and sometimes daily. Cullen's drug habit got out of hand. When Cullen did not have cash, Flanagan would provide the drugs "on tick". In about mid-2004 Cullen met Thompson and Weisz, whom he knew as "Yuckie". At about this time, Cullen lost his job at the meatworks because of his drug abuse and he had trouble paying his drug debts to Flanagan. Flanagan pressured Cullen to repay him saying he needed the money to pay others. Cullen began to sell speed on Flanagan's behalf to make money to repay Flanagan, although he used most of the drugs himself. When Flanagan realised Cullen was using the speed instead of selling it he was "pretty pissed". Flanagan said, "Hurry up and get the money or bad things will come of it". Weisz was present and added, "Yeah. Real bad things." Cullen understood that Weisz was Flanagan's debt collector. Cullen described him as "a very hairy and ugly looking sort of man. He has a long beard, is sort of fat".
One night Cullen heard Weisz say to Flanagan, "I will be your debt collector [Flanagan] and I can go around and collect the money off people who owe you on tick." Cullen moved out of accommodation he was sharing with a family because the father was worried that something bad might happen in front of his young children. He lived in his car for about three weeks. Flanagan and Weisz began to increasingly "hassle" him about money. Thompson tried to help him by letting him park his car in his driveway; he provided Cullen with food and helped keep Flanagan and Weisz off Cullen's back. Both Flanagan and Weisz continued to pressure Cullen. On one occasion Weisz said, "If you don't come up with some money soon, you are going to cop a flogging". In the meantime, Thompson looked after Cullen by providing him with free speed and by keeping the others away.
On Tuesday, 19 October 2004 at about 10.30 pm or 11 pm he was in the back seat of Thompson's car when Thompson drove into Pacific Petroleum at Rocklea. Thompson's girlfriend, Natalie, was in the front passenger seat. Thompson went over to Flanagan and Weisz. After a while Thompson called Cullen over. Flanagan said, "We have got a job for you to do to clear your bill." He thought this would involve running some drug deliveries, selling speed or purchasing oil on a stolen fuel card. Cullen stayed with Thompson and Natalie that night.
Early the next morning they booked into a motel. Cullen was driving one of Thompson's cars because his own was not registered. That night, he drove to the BP Rocklea to buy some speed from Flanagan. Flanagan was parked on a side street. Flanagan said he did not have any speed but he would have some later. Flanagan added, "You know about that job to clear you debt. There is a bloke getting dropped off at the airport tomorrow. I want you to go and get him and give him a hot shot and get rid of him." He then looked at Cullen "straight in the eyes" and said, "Don't fuck it up."
Cullen returned to Thompson and Natalie in the motel room and said, "That job that I gotta do for [Flanagan] and that. I have to get rid of someone." Thompson said, "Alright. Who is it?" Cullen responded, "I don't know at the moment." Thompson replied, "Alright then let's go and see them." All three then drove off to see Flanagan. On the way, Thompson said, "What have you got to do?" Cullen responded, "I don't know what the whole go is. All I know is that I got to give someone a hot shot. I don't know who he is or what he looks like but I know it's a male." Thompson said, "OK, no worries."
They pulled up behind Flanagan and Weisz, who were standing at the rear of Flanagan's truck. Thompson and Cullen got out of the car but Natalie stayed in it. Cullen said, "What the fuck is going on?" Flanagan said, "There is a bloke pulling up at the airport tomorrow called [Swinton]. I want you pick him up and give him a hot shot and then get rid of him." Cullen said, "Who the fuck is he?" Weisz said,
"You can follow [Thompson] over and [Thompson] will pick him up for you and then you can go and do it. There will be three syringes. The first one will be [Thompson's], the second one will be marked, which is [Swinton's], which is the hot shot and the third one will be your own. Make sure you don't fuck it up or you will be next. I guarantee you that you will be next if you fuck it up."
Cullen was in shock. Flanagan said, "[Thompson], I will get the hottie for you tonight." Thompson said, "Yeah, not a problem." Weisz said, "I will call youse in the morning."
Thompson and Cullen walked back to the car. Cullen said, "I really don't want to do this." Thompson said, "You've got no choice now." Cullen said, "That's just fuckin' great." They returned to the motel room. Thompson said that he and Cullen would go over to the airport at about 9.30 or 10.00 in the morning. They each had some speed. Thompson fell asleep. At about 7.30 am Weisz called on Thompson's mobile which Cullen answered. Weisz asked, "Where's [Thompson?]" Cullen said he was asleep and he could not wake him. Weisz said, "Hurry up and get the fuck over there before he gets a cab or some other way to leave the place." Cullen said he would again try to wake Thompson. Weisz said "Ok then I will ring back."
About 45 minutes later, Weisz rang back and spoke to Thompson. Thompson then told Cullen and Natalie, "Get all our shit together, we got to go." They packed their belongings into the two cars. Thompson and Natalie went in the blue car and Cullen drove the silver car. They met up in front of some shops near Breakfast Creek. Cullen asked Thompson about the hot shot but Thompson said he did not have one. Cullen asked what would he do. Thompson replied, "Take him for a drive." Cullen said he did not know the area. He took a street directory from Thompson's car. Natalie said, "I know a place where you can go where there is some abandoned houses. There was a murder there about twelve months ago where they found someone that had been murdered. You will find somewhere down there." She pointed to Norris Creek Road in the street directory and marked the page with a piece of paper. Cullen understood Thompson to be suggesting that he should take Swinton away from the airport and kill him. Thompson said, "Follow me to the airport and then get out of the silver car and get into my car and I will take you around there to go and pick him up."
Cullen followed Thompson's car to the airport memorial where they both pulled over. Cullen left the silver car and transferred to the back seat of the blue car. Thompson drove the blue car to the airport. He told Thompson he did not want to do "this". Thompson said, "If you don't they are going to get pretty nasty with ya." They drove around until Swinton walked towards them. Swinton got into the back seat and said, "How are you going mate?" Thompson said, "Yeah, alright." They then drove back to the memorial. Thompson said, "Just go for a walk around and look at the monument because there is a heap of under cover cops around." Cullen and Natalie got out of the car. Swinton went with Thompson. Natalie said to Cullen, "[Thompson] said to just walk around and look at the monument because there are a heap of cops here." After a while they all got back into Thompson's car and drove to a service station nearby. At Thompson's direction, Cullen took Swinton into the toilet to make sure he was not wearing a wire. Thompson continued to be concerned about "cops hanging around". Swinton enquired about his "laptop and other stuff". Thompson said, "It has been moved out to an abandoned place at Norris Creek Road." Thompson told Swinton to go with Cullen, adding, "he will take care of you."
Thompson left with Natalie. Swinton and Cullen caught a taxi back to the silver car. Swinton told Cullen to pull up at a service station for petrol in case they did not have enough. They stopped for petrol for which Swinton paid. Cullen drove Swinton out to Munruben. There was very little conversation on the way. Cullen decided what he was going to do. He would use a knife which was in the back of the car. It was part of a set he owned from his time working at the meatworks.
They eventually stopped at an abandoned house in Mahogany Drive, Munruben. Cullen told Swinton to go one way and he went the other. Cullen took the knife from the car and put it down the side of his pants. Swinton bent down to look at some property. Cullen leant over and, using his left hand, brought the knife across Swinton's throat from right to left, cutting it. Swinton ran off. Cullen chased him because Swinton was still alive. He claimed he did not want Swinton to be in pain. When he caught him he stabbed him in the chest. Cullen thought he saw someone and ran back towards the car. As he ran off he cut himself on the right arm with the knife which he was carrying in his left hand.
Cullen drove as fast as he could away from the scene. He changed his clothes at the side of the road because he had blood on his shorts. He met up with Flanagan and said, "It's done and do you have any gas on ya?" Flanagan said he would have some at 6.00 pm. Cullen then went to the BP at Rocklea where he met up with Weisz. Cullen said, "It's done." Weisz "seemed real happy about it" and said, "Oh, good." Thompson and Natalie then pulled up and he told them, "I have done it." Cullen had something to eat and then dropped the knife and clothes in a 44 gallon drum used as a rubbish bin at Pacific Fuels, down the road from the BP. Weisz phoned Cullen and told him "You got to drop the car off to [Thompson's wife] and I will come and pick you up and drop you back out."
(b) The statement of 1 December 2006[13]
[13]In the quotations from this statement, errors are as in the original.
As noted earlier,[14] in his second statement to police on 1 December 2006, Cullen said he had previously withheld information because he was scared for his life; he had continually received threats against himself and his family from Thompson and Weisz and was still afraid of them.
[14]See these reasons [4].
He gave police further information including the following. When he woke up in the Kangaroo Point motel room, he discussed with Natalie and Thompson their problem: the plan was to kill Swinton with a "hot shot" but they did not have one. Cullen said, "What the fuck are we suppose[d] to do?" Thompson said, "Have you still got your knife?" Cullen responded affirmatively and Thompson replied, "That's what we will do. We will use them to kill him." When they drove from the airport memorial to the airport to pick up Swinton, they were all in Thompson's blue Ford XR6. Thompson was driving and Natalie was in the front passenger seat. Cullen was behind Thompson. Swinton got into the rear seat beside Cullen. They drove to a Shell service station near the airport. Cullen and Swinton went into the toilet where Cullen "patted him down to see if he was wearing a wire". They returned to the car. Swinton gave $1,000 to Cullen who handed it to Thompson. Thompson then drove them to the monument near the airport where the silver Ford XF was parked.
Thompson, Cullen and Swinton transferred into the silver XF. Natalie moved to the driver's seat of the blue XR6. Cullen drove the silver XF with Thompson in the front passenger's seat and Swinton in the back. Natalie turned off the Gateway motorway in the blue XR6 and Cullen drove the silver XF over the Gateway Bridge to Munruben. Thompson and Swinton engaged in friendly conversation. Cullen followed the open street directory to Mahogany Drive, Munruben. He pulled into a driveway of a house which he thought was the one Natalie had referred to earlier that morning. The three men got out of the car and looked around the property. Cullen "started to get a bit spooked by the whole thing". They all got back in the car and drove around for a while time before returning to the same house. All three men again got out of the car. Cullen said, "We will have another look."
Cullen had the knife with him which he had previously hidden under the car seat. The three separated and then met up at the back garden shed where Swinton was looking for his property. Thompson was outside the shed. Cullen reached across and cut Swinton's throat. Swinton ran past Cullen and Thompson towards a neighbouring property. Cullen chased after him. Thompson was right behind Cullen. Swinton fell onto his back on the ground. Cullen stabbed him several more times in the chest and neck. Thompson was standing right behind Cullen. When Cullen realised what had happened he stopped and ran back to the car. A short time later Thompson ran around from the side of the shed to the car. He said, "Get the fuck out of here."
They both jumped into the car. Cullen drove off as fast as he could towards Brisbane. Thompson said, "It's done now mate. It's done. It's all over." Cullen saw he was covered in blood and had a cut on his arm. He stopped at a service station where he washed the blood off his arm. He returned to Thompson who had stayed in the car. They drove off and met up with Weisz.
He said that, otherwise, his statement to police on 15 November 2004 was correct.
(c)Cullen's cross-examination and re-examination
As he anticipated, Mr Nolan cross-examined Cullen on his second statement of 1 December 2006. Cullen agreed he had used drugs heavily during his life, including at the time of the events discussed in his statements and that this had "fried [his] brain". Abuse of amphetamines, he agreed, could sometimes cause hallucinations; his "whole life's been a jumble for years". Cullen explained his understanding of the term "hot shot" as something that would "make you crook or kill you".
He agreed that he had not given any reason why Weisz wanted revenge against him. He claimed that the police had pressured him into falsely implicating Thompson in the murder. Cullen said that he was scared and confused when he incriminated others in the murder. He agreed that he was pressured into making false statements implicating Weisz, Flanagan and Thompson. During cross-examination, Mr Nolan stated that he would be "asking the Crown to tender" Cullen's statement of 1 December 2006.
In re-examination, the prosecutor acceded to Mr Nolan's request and tendered Cullen's statement of 1 December 2006.[15] Cullen said that his claim in that statement, that he had previously withheld information because he had been threatened by others including Weisz, was not true.
(d) The appellant's contentions
[15]Ex 3.
Mr Davis contends that the learned primary judge erred in failing to give the jury any directions of the kind discussed in Edwards v The Queen[16] as to the limited use to be made of Cullen's evidence in his second statement to police of Weisz's post-offence threats. He submits that the judge should first have identified to the jury that part of Cullen's statement which contained the threats. The judge should then have told the jury that the fact that a threat may have been made does not mean that it automatically follows that Weisz was guilty, and that persons who are not guilty may very well make threats to avoid the risk of being charged with an offence.
(e) Discussion and conclusion
[16](1993) 178 CLR 193; [1993] HCA 63.
It is common ground that no such direction was given by the learned primary judge and nor was one requested by defence counsel.
The prosecution case was not that Cullen's evidence in his second statement, that Weisz had threatened him after the killing, demonstrated a consciousness of guilt on Weisz's part. In his jury address, Mr Edwards referred only in passing to this aspect of Cullen's evidence.
The present case is not within that category of cases where a direction of the sort discussed in Edwards is required. Cullen's evidence of Weisz's threats to him after the killing was not relied on by the prosecution as evidence of a consciousness of guilt on Weisz's part. Very little emphasis was placed on this aspect of Cullen's evidence at trial. In those circumstances, an Edwards direction was not only unnecessary but inappropriate: Dhanhoa v The Queen.[17] Had the judge given the directions now sought, it would have drawn the jury's attention to the evidence of Weisz's post-offence threats which had not been emphasised by Mr Edwards. In these circumstances, where there was a large body of admissible and persuasive evidence that Weisz was Flanagan's intimidatory debt collector, the direction the subject of these contentions was more likely to damage than to assist the defence case.
[17](2003) 217 CLR 1; [2003] HCA 40.
I am not persuaded that the directions now contended for were necessary or that their absence has resulted in a miscarriage of justice. These grounds of appeal must fail.
Other evidence
Before turning to the remaining grounds of appeal, it is necessary to set out in some detail other aspects of the evidence at trial.
(a)Evidence from others of Weisz's contact with Swinton before the killing
The prosecution called evidence that, some time before the killing, Weisz had taken possession of Swinton's motor vehicle, apparently as some sort of security for Swinton's drug debt to Flanagan. Police officers gave Weisz traffic infringement notices on 3 and 5 October 2004 when he was driving Swinton's vehicle.
On 12 October 2004 Thompson delivered Swinton's vehicle to his associate and fellow truck driver, Alan Hill. Hill took it to the house of a friend where it remained until collected by police after the murder.
Luke Kitzelmann gave evidence that he saw Weisz with Swinton's vehicle about two weeks before the killing. Weisz told Kitzelmann that he had bought the vehicle from Swinton and offered to sell it to Kitzelmann for about $3,000. Earlier, Weisz gave Kitzelmann the vehicle to use when Kitzelmann had no fuel in his own car. Kitzelmann saw Weisz, Flanagan and Thompson remove items, including a lap top, mobile phones, clothes and gun cases, from Swinton's vehicle. They offered him anything he wanted from the vehicle.
Kitzelmann also gave the following evidence. He was present when Weisz collected about $1,000 from Swinton at the Oxley Hotel-Motel. A week or two later he returned there with Weisz. Kitzelmann heard Swinton telling Weisz he had no money left. He heard Weisz and Flanagan discussing Swinton's use of "a couple of hundred dollars worth [of speed] a day". On one occasion, Kitzelmann used a vehicle belonging to Weisz to pick up Swinton. Flanagan, in Weisz's presence, instructed him to take Swinton to Maryborough, collect his gear and a tax cheque and then return him to a log cabin where someone would pick him up. In the end, he did not take Swinton to this log cabin because he decided something was not right. Instead, he took Swinton to a place where he was to be collected by a friend. Kitzelmann told Flanagan he had dropped Swinton at the log cabin. Kitzelmann then travelled around Australia for some months living out of his truck. He had no further contact with Weisz, Thompson or Flanagan.
(b)Weisz's interviews with police
Weisz did not give or call evidence but his account of his involvement was before the jury. He gave police an exculpatory statement on 22 October 2004.[18] He was then interviewed by police over 13 hours on 25, 27 and 28 October 2004. Transcripts of the recordings of those interviews[19] were used by the jury as an aid when listening to them. Weisz gave rambling and contradictory accounts of the events preceding and following Swinton's killing which were partly exculpatory and partly inculpatory. To fairly deal with the remaining grounds of appeal and to give the real flavour and context, it is necessary to refer at length to these interviews.
[18]Ex 6.
[19]In quotations from the transcripts the errors are as in the original.
(i)The interview of 25 October 2004
The transcript of the interview of 25 October 2004 was 127 pages long and concluded at 10.41 pm. Weisz gave police information, including the following. He had his own trucking business. He spent a lot of his time at Pacific Petroleum, Rocklea. On Saturday, 25 September 2004, he met a person, Daryl, who was known as "Ned" because he had a tattoo of Ned Kelly on his back. He later found out that Daryl was Swinton. Swinton had a Toyota four-wheel drive. He walked awkwardly because of an injury from an accident. His mind was "very scattered and schizzed out". Swinton said that he "escaped from a nut farm". Weisz decided he would spend that night in a nearby suburban motel and, because he felt sorry for Swinton, he asked him along. Swinton was acting very strangely and claimed that "some people were after him and trying to rort him or rip and that and inject him with some stuff or something."
Weisz had used amphetamines for over 21 years, only stopping the previous Monday when his partner found drugs in a syringe belonging to him. He decided then that if he did not stop using drugs they would kill him.
Weisz and Swinton continued to stay at the motel until Weisz left for work at 7.00 am on Monday 27 September. Swinton was expecting money to come through to him. Weisz drove Swinton's vehicle because it was more economical than Weisz's truck and Swinton did not want to drive. Swinton's four-wheel drive was full of his property and probably contained most of his belongings. He had two rifles in army camouflage carry cases.
Weisz returned to the motel to see Swinton on the night of Monday 27 September. Swinton was interested in getting "dirty girls" but Weisz was not. Weisz left the motel in Swinton's vehicle and drove back to his truck which was parked at Rocklea. He spent that night in his truck.
On Tuesday 28 September, Swinton telephoned him and told him his money had come through. Weisz returned to the motel room at about 6.30 pm. Swinton's mental state was steadily improving. Weisz spent Tuesday night again in his truck as he preferred this to the motel. His partner came to Brisbane on Wednesday 29 September and he stayed with her at a different suburban motel. Weisz continued to use Swinton's vehicle with Swinton's consent. Weisz cleaned the vehicle and fixed its tail lights and indicators. Weisz visited Swinton at the motel on Thursday 30 September and Friday 1 October after finishing work. Weisz understood the motel was paid up until Saturday 2 October.
Weisz was driving Swinton's vehicle on Sunday 3 October near Warwick when he was pulled over by police for having a radar detector. At 2.10 am on 5 October 2004 he was driving Swinton's vehicle in Brunswick Street, Fortitude Valley, where police charged him with disqualified driving.
On Wednesday 6 October, Swinton telephoned him and said he could not pay for the motel or the $50 phone bill. He said he had more money coming through at the end of that week. Weisz noted Swinton's four-wheel drive had gone and assumed Swinton had collected it. Weisz had left the keys under the mat inside the vehicle so that Swinton could take it whenever he wanted. Swinton telephoned him and told him he was at home with his dogs. Weisz understood Swinton lived about three hours drive away and assumed he lived in Gympie.
Weisz denied knowing Flanagan. He knew a truck driver called "Mick" but claimed to be unaware of someone called Michael Thompson.
The interviewer told Weisz that, on Sunday 3 October 2004, Swinton rang his father and said, "They've got my vehicle and everything, everything that's in it and the phones. To get it back I have to pay money." Weisz said he did not understand why Swinton would say this.
The interviewer told Weisz that in Maryborough at 4.15 pm on 20 October 2004 Swinton made a phone call to Weisz's mobile number in the presence of Swinton's father and spoke about being picked up from Brisbane airport. The interviewer also told Weisz that Swinton kept a diary in which he had Weisz's mobile phone number. The diary noted, "$1000 owing to pick up toyota and all pozeshans".[20] Weisz said he knew nothing about this.
[20]Ex 8 (errors as in the original).
When told that he had been seen with Flanagan, Weisz conceded that he knew him, although not by that name; he knew Flanagan as "Donkey". After being confronted with text messages recently sent to Flanagan's phone, he also conceded he knew Thompson, his wife, Maree, and her 14 year old daughter. The interviewer told Weisz that Swinton arrived at Brisbane airport at 8.07 am on Thursday 21 October 2004 (the day he was killed). Weisz agreed that he knew the person "Monk" short for "Monkey Boy". (It is common ground that this is Cullen.) Weisz conceded that he first met Swinton through Swinton purchasing drugs from Flanagan and that he had Swinton's vehicle after Swinton returned to Maryborough.
Weisz then provided the following information. Flanagan told Weisz that Swinton owed him $1,000. Weisz was unable to meet Swinton at the airport and he arranged for Thompson and Cullen to meet Swinton and pick up the money. Thompson and Cullen had admitted to Weisz that Cullen had stabbed Swinton in the throat and the chest; Cullen was "skiting" about it. Weisz was shocked: he "just couldn't believe it". He asked Cullen why he did it. Cullen responded that it was because Swinton was a "rock spider". Weisz understood this to mean "[j]ust like a low life". Cullen appeared "jumpy, bouncy … like he was under the influence of a drug … amphetamines." Weisz went to his truck. He did not believe what Cullen had said. Thompson then arrived. He said he had the $1,000 from Swinton to give to Flanagan.
(ii)The interview of 27 October 2004
The police interviews with Weisz continued on 27 October 2004 over almost four hours. After he was informed of his right to remain silent, he provided information, including the following.
When he first met Swinton, Flanagan injected drugs into Swinton's arm. That night Swinton was very "scatterd-scitsy… frantic … paranoid" about people, thinking they were after him. He was not sure what happened to Swinton's property in his four-wheel drive; Thompson took his fridge. Swinton owed Flanagan in excess of $3,000. Swinton came to Brisbane on an earlier occasion before his death and paid $2,300. Weisz's memory was not good because of his drug taking during this period. Whilst Weisz was staying at the motel with Swinton, he gave Weisz $1,200 to purchase a hand gun. Weisz understood from Swinton that Swinton believed others were chasing him for money and for his four-wheel drive. Weisz also understood the four-wheel drive was "under finance". Weisz claimed that at the time of Swinton's death, Swinton owed only $1,000 to Flanagan. As far as Weisz was concerned, once Swinton paid this $1,000, Weisz would return the vehicle to him. Weisz thought that on the following Monday Swinton phoned him and said that he had "rustled up" the $1,000 and he was coming down to Brisbane the next morning. Weisz did not tell Swinton that he and Flanagan were working and would not be collecting him. Weisz arranged for Thompson to see Swinton and pick up the $1,000 debt to Flanagan.
Weisz said: "That's when they said they were going to give him a hot shot." He continued:
"There's blokes from down south wanted [Swinton] out of the way for some reason. …
Wanted [Swinton] out of – out of – out of the picture and a couple of times [Flanagan] told me that this bloke wanted him pushed aside, so to speak.
… I'm not a hundred per cent certain of why but I think it's – there was some involvement there to do with – quantity amounts of Sudafed there for the purpose of – of making amphetamine drugs, and I don't know how [Swinton] had any involvement in it or anything, but apparently he – he knew a fair bit about it, the circumstances and where it is and who [indistinct] or – but [Swinton] had some sort of connection there as well and this is where this person down south wanted [Swinton] out of the way.
… [Flanagan] told me a couple of occasions that this person wanted him out and I asked [Swinton] why this person is chasing him from – from Beaudesert or – his name comes to mind now as Bevan or Brenton.
…
… I did mention it to him why this person was after him and chasing him and that, and [Swinton's], like I said, said he didn't know why sort of thing and – and then I said to him, "Is it something to do with a fucken warehouse full of Sudafed's?" And he did know something about that."
The following exchange between Weisz and the police officer then occurred:
"And how does that relate to you talking about a hot shot or hot shots?-- This is when I've told [Thompson] that he'll have to go in and collect the money because by this stage me, [Flanagan] and [Thompson] have sort of – [Flanagan] and [Thompson] were – we were in partnerships and we've got a business to start with and [indistinct] let me come in as a – as a third member with the drugs, … I believe I mentioned to [Flanagan] that [Swinton] was coming in. I couldn't arrange to be there to go and – to get the money that he was owed. [Flanagan] couldn't be there because we were both working and so I – I arranged it for [Thompson] to go – to go and see him. And this when – well, this – [Thompson] knew from previous times before that these people down south wanted to wack him, and then [Thompson] said, "I'll organise a hot shot and put him out."
… That [Thompson would] have to go and meet [Swinton] at the airport and pick up the thousand dollars.
…
Well, he just sort of said, "Well, when's – when's that?" I said, "Well, that's tomorrow, 8 o'clock in the morning. You know I had had, you know, "You got to be there." And it's like I said, well I don't remember the words in between but he said that, "He'll go and organise a hot shot for him that – that night to [indistinct] fucken he'd be there.
… Because he had to go out of his way – out of his way to go and find someone who – to make a hot shot up for him.
… And – and in the back of my mind I felt that it was just all a load of bullshit.
Okay. What – what in your mind what's a hot shot? What's that mean?-- An injection in the head to make him fall really ill. To sort of drop someone down to their knees sort of thing.
Yeah. And why do you think [Thompson] was saying that for? Why would he do that to [Swinton]?-- I don't know why – why but I got – it's got something to do with this – these Sudafed's the [indistinct] – [Thompson] had buyers for these Sudafed's, boxes and that, and someone was going to manufacture them into amphetamines, and that's to their involvement with this person from down south.
Do [Thompson] and/or [Flanagan] have an association with this person from down south?-- I'm – I don't know if it's a direct association or not. I really don't know.
…
So [Flanagan] has – does have a conversation with you when he tells you about this fellow from down south who wants [Swinton] out of the way?-- Yes.
Later in the interview Weisz, said he met Thompson, Cullen and Natalie at the BP Rocklea the night before Swinton's killing, somewhere between 8.00 and 10.00 pm:
"… [Thompson] was yakking on with – with [Flanagan] and that, and even then he – he sort of said, "No. I'll give him a hot shot with black and wack, you know." And then it was like – said that he'd do it in a toilet at the airport..
… The way [Thompson] was, he was – he was dosed up on drugs as well and was really buzzing himself sort of thing."
Weisz later added that Thompson was "bragging, skiting and – and – oh, just general bullshit and such as well. And – and along – along somewhere in the – in the conversation he goes that he'll – he'll give him the hot shot, give him a wack in the – in the airport toilet." Weisz said that Thompson looked in bad shape from his drug taking. He tried to tell him "to lay off the gear because he was on that downhill slide of losing the plot and everything". Thompson was "always skiting and bragging" so that Weisz did not take any notice of what he was saying. He said that Thompson asked him to telephone him at 6.00 am to wake him up. As soon as Flanagan gave Thompson some drugs, Thompson and Cullen left.
Weisz agreed with the police suggestion that he was in partnership with Flanagan and Thompson in their drug business.
Weisz added the following information. After Thompson and Cullen left, Flanagan and Weisz discussed drug debts owed to them. Weisz went back to his truck where he spent the night. As arranged, he rang Thompson at 6.00 am. Natalie answered because Thompson and Cullen were both asleep. Cullen came to the phone. Weisz told him to get Thompson because Weisz was not happy dealing with "some fucking monkey head". Weisz rang back later and Thompson finally came to the phone. He said, "Yep, I'm on my way." Swinton rang Weisz on his mobile phone that morning from the airport. Weisz told him to "just sit tight". Swinton rang three times around 9.30 am to find out why no-one had met him at the airport. On each occasion Weisz assured Swinton that someone would be there soon.
At about sundown, Cullen pulled up close to Weisz's truck in the side street at the BP Rocklea. Cullen said that Thompson was coming shortly. Cullen said that he, or perhaps "they", got the money, and added something like, "I stabbed the rock spider in the throat." Weisz said this "… took me back a little bit, you know, 'cause I didn't understand, sort of thing." Weisz added: " … by then, [Thompson's] pulled up and – and said that [Cullen] did it and all his debt was cleared with [Flanagan]." The police officer asked what he understood that to mean. Weisz replied: "That he's – he's gone and – and knocked [Swinton] over."
"Okay. And what debt would that be referring to? Why is he debt free? What debt did he have?-- Well, I – I – just presumed that – that is the debt that he held with [Flanagan].
Okay. Are – are you personally aware of a debt that he had with [Flanagan]?-- He – he owed nearly $2000 to [Flanagan].
For what?-- Drugs.
…
Why would he be debt free if he's – if he – ah – if he killed [Swinton]?—I really don't understand that myself, mate. …
…
Doesn't that imply that [Flanagan] then-----?-- [Flanagan's] never told him to go and do – do this job.
He hasn't?-- Not that I ever heard him say to do it.
Okay. So if – perhaps -----?-- Well, I never told him to go out-----
-----[indistinct] have no knowledge-----?-- and do this job either.
…
… As I said before – um – Mick said he was going to give him a hot shot which – which I – I – I led to believe was – was – was baloney, really, and – and he's – he's gone to pick up $1000 which [Swinton] was going to pay – pay out his bill and that for – for – and – and we didn't have his car or anything like that – ah – held for – ah – ransom till he paid his bill or anything.
Yep. When you say "we", who's "we"?-- Well, me – me or [Flanagan] or – or – or – ah – or – or [Thompson]. Really – well, [Thompson] wanted to keep his fridge. I – I – [indistinct]. That – that was his now, you know, sort of thing. If he – he wanted it he's got it and he's not going to let go of it.
So you're saying you didn't. None of youse were doing that?-- No."
Weisz said that Thompson told Cullen that he would have to go away. Weisz told Cullen to "lose [my] name and number as well and don't ever ring [me] for nothing."
Towards the end of this interview, the following exchange occurred:
"Did you kill [Swinton]?-- No I did not. I'll look at you in the eyes, mate, and tell you, no, I did not, and, no, I was not near that vicinity. I don't even know whereabouts exactly he was killed or – or picked him up to kill him or anything, and believe it or not, I liked the man."
(iii)The interview of 28 October 2004
The final interview between Weisz and police officers took place the next day, 28 October 2004, between 3.00 pm and 11.46 pm. When questioned again about the events of the evening before the killing, Weisz said:
"[Thompson] mentioned about the hot shot. He said he was going to give him a hot shot, but [Flanagan's] just sitting there listening, right? Yeah – we're just sitting there and listening. He's always bombing like that – like – he didn't say it to him, 'Go and kill him'."
Weisz drew a distinction between "killing" and "hot shotting". The police officer suggested that "a hot shot" meant to give someone an overdose of drugs, with a view to them dying, adding: "That's what a hot shot is, to make it look like a non-suspicious death. That's what a hot shot is?" Weisz replied: "Yes, and then, I'm trying to give it as well that I've heard people say that they've had hot shots and that, and it's made them really crook."
The following exchange occurred between the police officer and Weisz:
"…
Okay, a hot shot, the terminology means you give someone an overdose of drugs?-- [Mmm-hmm][21]
Do you concede that people [die][22]from having overdoses of drugs?-- Well, people do, yes.
Okay. So is it your assertion that they were going to take him to the toilet of the airport, give him a hot shot-----?-- It was mentioned that -----
-----and he would just give a-----?-- That was mentioned.
And he would just be seeking the toilet of the – of the airport?-- Basically, yes.
Remove the $1000 [indistinct] for his debt?-- Hmm-mmm.
And then leave him in the toilet?-- Yes."
[21]I have listened to the tape and this reflects what was actually said, which differs from the transcript.
[22]The transcript does not record the word "die" but I have listened to the tape and it is clearly said by the police officer.
The interviewer then played to Weisz a telephone conversation on Friday 15 October 2004 between Swinton and the emergency 000 telephone operator recorded from a public telephone in Racecourse Road, Hamilton. Swinton told the operator that he was in trouble and had been "ripped off": his money, car and possessions had been stolen, including a gold chain worth $3,500. Swinton complained that he had been picked up from the airport and taken to a bank to get the rest of his money. His assailants told him that he had better pay up because they had his mobile phones containing his home phone contacts. They then drove off in his car. Weisz responded, "He wasn't ripped off. As to his possessions and that, they were not held in lieu of [indistinct] – until his debt was paid. That was not the case at all."
The interviewer asked Weisz about his mobile telephone records.[23] At 8.15 am on the morning of Swinton's killing (21 October 2004) Weisz made a call to Cullen's mobile phone number. Weisz said he did this because he could not raise Thompson. The previous day at 11.46 pm he also phoned Cullen's mobile phone. Weisz again said this was because he could not raise Thompson on his phone. Between 12.45 am and 6.14 am on the day of the killing Weisz sent three text messages to Thompson's phone and one to Cullen's phone. Weisz said this was to see what they were doing. Between 6.18 am and 8.15 am on 21 October Weisz rang Thompson's phone on several occasions but could not raise him. He also texted Flanagan on three occasions between 7.01 and 7.02 am. Weisz said he did this to see if Flanagan was with Thompson and that all this telephone contact was drug related. At 8.22 am Weisz spoke to someone on Cullen's phone for two minutes and 39 seconds and then sent text messages to Flanagan. At 9.19 am Weisz rang Thompson for about three minutes; Thompson said he was on his way to the airport. Weisz then received four phone calls from a pay phone at Brisbane airport which Weisz said were from Swinton. Between 10.33 am and 2.05 pm Weisz sent four text messages to Flanagan and one to Thompson. Weisz said these were to find out whether Thompson and Cullen had picked up the money from Swinton and paid Flanagan: Thompson was unreliable because he was "drug-fucked" and there was an outstanding debt with Flanagan's supplier that needed to be paid. Between 2.55 pm and 3.20 pm Weisz texted Flanagan nine times and Flanagan phoned Weisz five times. But for a period of about 45 minutes, from about 2.10 pm until 2.55 pm (around the time Swinton was killed), there were no incoming or outgoing calls or text messages on Weisz's mobile phone. Weisz had no explanation for this absence of activity.
[23]Ex 19 and ex 20.
The interviewer returned to Weisz's meeting with Cullen and Thompson at the BP Rocklea after the killing. Weisz said that even when he saw the bag of property belonging to Swinton he did not "really comprehend that he was been murdered." He was questioned about a series of phone calls and text messages sent from his mobile phone to Flanagan and Thompson shortly after Cullen had told him he stabbed Swinton in the neck. He said these were all related to drug matters and not to Swinton's killing. The interview continued:
"So I'm having problems with this so I'm just going to say it so you can clear my mind; Darren Flanagan has a drug business?-- Yeah.
[Swinton] owes him another thousand dollars after paying him about four or five grand already. He owes him a thousand dollars. He's present for a conversation where [Thompson] says he's going to give him a hot shot at the airport. You're at a service station where [Cullen] tells you he stabbed him in the neck. You all then go your separate ways, albeit having mad phone contact with each other, but this phone traffic is about drugs. It's not anything to do with a man that's been murdered at Munruben?-- No, it's not. It's not to do with -----
You speak to Darren Flanagan – Flanagan after speaking with [Cullen] and you don't say to him, "Hey, Darren, you won't believe what [Cullen] just told me he did." You say, "Oh, I want to get on." Is that what you're saying?-- Yes, mate.
You're honestly saying that you didn't-----?-- [indistinct]
-----mention this to any people and all these SMSs relate to drugs?-- Yes, mate.And that's-----?-- I can't remember a lot of things that I've
said or – over the phone.Why did you all meet something like – so many times on that night after the murder/
The BP at Rocklea?-- That's drug related."
Weisz told police that only when Cullen told him that he had killed Swinton did he tell Cullen to lose his name and phone number. He maintained his claim not to remember the topic of his many subsequent phone conversations and text messages.
Later, after police exhorted him to tell the truth, Weisz said:
"… I know that [Cullen] didn't kill [Swinton]. That, ah – that someone from down south of, ah, ah – towards Beaudesert there somewhere that wanted him out of the way – [Swinton] out of the way. [indistinct] [Flanagan] told me that this person wanted him out of the way. Ah, that he was going to get a hot shot and whacked, or put out, on the 21st, and, ah, that afternoon, I first seen [Cullen] and he [indistinct] that he had done it.
… The truth was, um, um, originally, I thought that [Swinton] would get his vehicle back as such – um, returned to him. I didn't really believe that he was just going to get knocked over and put out."
He said that in mid-October he decided he did not want to use Swinton's vehicle any more. He explained:
"…They were talking about hot-shotting [Swinton]. Putting him out of action, so to speak.
So that conversation you were saying before when this set of tapes started that someone south, Beaudesert, wanted him out of the way – [Flanagan], you said, told you that he – he was – [Swinton] [indistinct] killed and, ah, talked about him receiving a hot shot and being whacked, you're saying that conversation – you were aware of that conversation before going to [Thompson's] house with the four-wheel drive and the diesel?-- Yeah. After, ah, [indistinct] it was mentioned a few times that people wanted him out of the way.
How much debt did he have, [Swinton]?-- 3,000 [indistinct] by [Flanagan]. I believe it had to be for drugs and [indistinct] equipment.
When you met him at the airport on the 15th of the 10th with [Thompson] and you say he gave 23 hundred dollars, which is written in his diary?-- Yes.
Isn't it true that at that time of meeting at the airport, [Thompson] had his vehicle and you didn't think he was going to give it back?-- I knew the extent that – that [Thompson] was going to go and hot-shot him or get a hot-shot organised for him and everything like that. At the same time, I didn't really believe in my own mind that, um – that when [Thompson] had the vehicle and that, that I didn't know what was going to happen to the vehicle or anything.
Why was [Thompson] the one that was going to give him the hot-shot?-- I'm not sure why he was going to do it. Because he had some sort of connection that someone could make up a cocktail of some description. There was a lot of things that, ah, [Thompson] and [Flanagan] were talking about. I was kept in the dark about things to a degree.
Was there a conversation between you, [Flanagan], [Thompson], [Cullen] in relation to [Swinton] being killed?-- There was mention there that – of this hot-shot, and [Thompson] said he was going to organise a hot-shot for him the day before arriving. Um, that him and [Cullen] would go and do it, ah, the day before arriving.
Which occasion?-- On the 21st. They'd been wanting to go and do it for over a week. They'd been sort of like wanting to work out how to go and do it.
So are you saying that there was discussion that when [Swinton] arrived on the 21st he was going to be murdered?-- Hot-shotted, yes.
And-----?-- No-one mentioned the word "murdered" or "killed." [indistinct] hot-shot him or whack him, so to speak.
Was that an indication that he would die as a result of the hot-shot?-- I think that's what the intentions were, yes.
And where was this conversation?-- Um, be at the Pacific. A lot of talk happened, ah, sitting around in [Flanagan's] truck and that, or [Flanagan] would be sitting in the truck and I couldn't hear him that clearly as well and there was still people coming and going there [indistinct] drug related matters."
The interviewer then returned to the events surrounding the incident when Weisz and Thompson met Swinton on Friday, 15 October 2004, earlier in the week he was killed. Weisz claimed that Swinton was not threatened but he conceded that he may have been intimidated by the way Thompson was acting "[l]ike half psychotic, you know. His manner wasn't polite sort of thing. … it pissed [Thompson] off that he had to come all that way and come and pick up the money and it wasn't there. .." Weisz said that Swinton repaid $2,300 of the $3,000 owing. Although Swinton then owed $700 he and Thompson told him, "It just went up to 1,000 for fucking us around". The interview continued:
"So you were standing over him?-- Like that, yes.
And his chain?-- He volunteered his chain.
Volunteered his chain. His chain was worth more than the debt?-- Yes.
And you're saying he volunteered his chain and had already paid 23 hundred dollars and was going to pay another 1,000?-- Yes."
Weisz said that Swinton was paying money for the return of his property because he believed that Flanagan had "de-bugged" the property. Weisz agreed with the suggestion that he and Thompson had taken advantage of Swinton and that demanding payment for the alleged de-bugging of Swinton's equipment was "a rort" of someone whom he thought was a "nutter".
The interview continued:
"… you guys have intimidated him to pay money and demand he pay more money for property you never thought he was going to get back?-- Yes.
…
And what's the conversation in relation to the bank [indistinct] being taken to the bank?-- He went to the bank there to check it, ah, and then come back and he didn't have any. Um, he tried to ring his parents. He talked to his parents, actually, on the phone and was asking them to send him a – send $1,000 up to him, and he was saying, "I need it. I have to have it." And I don't think they were going to give it to him.
He's told his parents, from the statement of his father, that he was going to be killed if he doesn't pay – pay money and so forth?-- I don't know about that, but-----
Well, [indistinct]-----?-- ---- I never said anything like that to [Swinton] or threatened him like that ever.
Well, how did you threaten him?-- I didn't threaten him at all.
You said you intimidated him. How did you do that?-- Ah, just told him – well, he still – he owes $1,000 - $700. The extra three was for fucking us around and not paying it all.
Okay. What about his mobile phone? He makes mention of taking – that his phone has been taken from him?-- Um, when he got in the car at the airport, I said to him, "Give us your phone" and he passed it over and I turned it off."
Weisz said that he received three and a half grams of amphetamines from Flanagan for his involvement in this episode.
Later the interviewer returned to the discussion before Swinton's death about what was to be done to him:
"But, on your recollection, there is some discussion previous to him going in to him and receiving a hot-shot?-- [Flanagan] kept, ah, um, ah – he kept referring to the person down south that wanted him out of the way, and they wanted it done. You know, that's basically how it come across.
So you said previously you'd never met this person from down south?-- No.
So who in your association – who in your group of associates is responsible for this talk about killing [Swinton]?-- It was mentioned through [Flanagan] 'cause [Flanagan] had contact with this person. This person had, ah, maybe bought drugs off of [Flanagan], but I've never met him in the weeks that I've [indistinct].
Just after that, evidence (from another witness) that the appellant had used Swinton’s vehicle after the time he originally said he had last seen it was revisited. The appellant said that Thompson had said that he wanted it. The appellant had said that he (the appellant) had not wanted to use it any more. Asked why, he said:
“They were talking about hot shotting Ned. Putting him out of action, so to speak.”
A passage of questioning fully set out in paragraph [70] of McMurdo P’s reasons shows that the appellant knew before Swinton’s arrival in Brisbane on 21 October 2004 that Thompson was intending to hot shot him or organise for it to happen. Thompson said he would organise it and Cullen would do it. Then the following was said:
“So are you saying that there was discussion that when Ned arrived on the 21st he was going to be murdered?--
Hot-shotted, yes.And ------?-- No-one mentioned the word "murdered" or "killed." [indistinct] hot-shot him or whack[47] him, so to speak.
Was that an indication that he would die as a result of the hot-shot?-- I think that's what the intentions were, yes.”
[47]OED Online Draft Additions May 2004: “to murder, esp. to execute.”
He was then further questioned about the events of 15 October 2004. The appellant said that Swinton had told him that he was coming to Brisbane and that Thompson was the means of transport to enable collection of the money. He was reticent about agreeing that it was his job to collect debts, but said that Flanagan told people that he was on board with them. He was therefore mistaken for a “strong arm tactic”. Because of his appearance, people paid their bills. He answered vaguely when asked why he took such an interest if the debt were owed to Flanagan. Perhaps a more cogent explanation of his interest in ensuring that the money was got in is contained in a later passage where he referred to the fact that Flanagan owed money to people above him in the drug supply chain and it was necessary to keep those payments up to date for fear of retribution from those who collected debts for them. As a person connected with Flanagan, he had interest in ensuring that debts were paid by people supplied by Flanagan.
In another passage, the appellant said that Flanagan’s references to the man from the south wanting Swinton out of the way were made to convey that it had to be done. He was never asked to do it himself but had made up his mind that he was not going to do so. A little later, in the week before the killing, Flanagan said again that the person from the south wanted Swinton out of the way. Thompson said he knew someone who could mix up a hot shot. According to the appellant he heard from Thompson, probably during the night before the killing, that he had got a hot shot but by the morning it was apparent that it could not be found. He said he believed that the plan, if they had lost it, was that they would make something up themselves. He was then asked about his thoughts at the service station the night before the killing when the discussion was occurring about what would happen. He replied that he thought that Swinton was going to receive a hot shot in the toilet at the airport but believed that it was not going to kill him.
The passage shows the competing influences on his mind of knowing the action that had been foreshadowed and feeling that because Thompson and Cullen were so unreliable or inept that it would not happen. Shortly after that, he was referred to several phone calls and texts sent during the morning of the killing. He was asked whether they were sent because they had lost the hot shot and the plan was not going as it should. He said that he was pointing out to Flanagan that although the plan was that they would give Swinton a “whack” in the toilets, he did not know how they were going to handle it from there.
He went on to say that he thought that they might give him a whack but he did not really think that they would murder him. He later said in the same passage that he thought that, because the person down south wanted Swinton out of the way, Thompson and Cullen were trying to “big note” themselves and they would go and do it. The police officer said:
“So the person down south wanted him --- dead?”
The appellant replied:
“Yeah I wanted --- him out of the -- that’s right.”
The police officer then said:
“That’s what out of the way means doesn’t it?”
Swinton replied:
“Yes.”
“And (Thompson) is saying that he’d go do that?” --- “Yes.”
The appellant then said that during the morning of 21 October 2004, he raised with Flanagan the risk of cameras on the freeway and at the airport seeing Thompson and Cullen picking Swinton up. He rationalised raising this concern as a possible deterrent to anything happening. He said that at the time he sent the messages, he had believed that Thompson and Cullen were going to cause Swinton some harm. He acknowledged that sending messages about the risk from the cameras might imply that, because the hot shot was not feasible, something else might be done. He said that really he was hoping that all that would happen would be that they would get the money, and at worst, that Swinton would be beaten up. He concluded by agreeing that he was fairly certain that something was going to happen but was hoping it would not.
The appellant then volunteered that one of the texts he had sent to Flanagan was to the effect that what was done should not look like a murder robbery. He was then asked a series of questions which culminated in him saying that if the actual participants had been seen on cameras, it would lead to all of the other people involved. He agreed that that was in the back of his mind when he texted the message about the concerns to Flanagan. He said he did not want to be involved in a murder, but conceded, in agreement with a question put to him, that he was involved because had been part of the conversation where it had been acknowledged that Swinton was going to be killed.
Possible Conclusion Open to a Properly Instructed Jury
There were obviously major issues for the jury to consider about Cullen’s creditworthiness. If the evidence in Cullen’s statement concerning the appellant’s involvement in the conversation on 20 October 2004, particularly the admonition not to fail, were accepted, it would provide strong evidence that the appellant was directly involved in a plan to kill Swinton. Taking the evidence in Swinton’s records of interview by themselves, the evidence could lead a properly instructed jury to conclude that the appellant had been an integral part in a plan which he realised was intended to bring about Swinton’s death. Despite any scepticism about the ability of Thompson and Cullen to carry it out, his concern, demonstrated by his actions during the day, including his anxiousness, as the plan proceeded, that they may be recorded on surveillance cameras with Swinton and lead the police to him, suggested that he still accepted that the objective of the plan might still be carried out. Despite any hoping against hope on his part that it might not, or any mental reservation about it, he did nothing to effectively withdraw from the enterprise.
Grounds 1 and 2
Cullen’s first statement was inculpatory of the appellant. It was accepted by the appellant that it was admissible. The second statement was also inculpatory of the appellant to the extent that it verified that Cullen adhered to what he had said in the first statement, which included the appellant’s role prior to the events of the day when the killing occurred and his apparent satisfaction when told of the killing. It was accepted that, if the first statement was admissible, it was imperative for the defence to establish that Cullen had given a different version of at least part of the events on the day of the killing with a view to inviting the jury to conclude that they should not act on his evidence at all. If cross-examination was conducted on that basis, firstly, the substance of the statement would be brought out and, secondly, the reason why the evidence had been changed would have been elicited.
The complaint pressed was that no direction had been given to the effect that, merely because a threat had been made, it did not automatically follow that the appellant was guilty. Innocent persons who are not guilty may very well make threats to avoid being placed on trial and at risk of conviction.
Four observations may be made as to this submission. Firstly, there was an issue, explored in submissions in this Court, whether it may have been considered inadvisable to elaborate on the threats, having regard to the way in which the matter had gone to the jury. Secondly, while it is not fatal, no application for redirection was sought. The fact that the appellant had been represented by experienced counsel may shed light on the forensic approach to the issue. Thirdly, the most substantial change to the statement was the implication of Thompson in the killing. If there were threats made by the appellant, they were not operative in affecting the information given about his role, because that had been revealed in the first statement. Fourthly, as also explored in submissions in this Court, the appellant had admitted knowing that doing serious harm at least, to Swinton, or, depending on the conclusion drawn about the meaning of his statements, killing him, was in contemplation in the days leading up to the killing. The real issue was his criminal responsibility for the events that actually occurred. It was not a case where the making of any threat was of such fundamental importance that the direction in the form contended for was obviously necessary or desirable.
In my view neither of grounds of 1 or 2 are made out.
Ground 3
There was no dispute that it was appropriate to give the warning that was given by the learned trial judge that it would be dangerous to convict the appellant on any evidence given by Cullen unless the jury found that the particular piece of evidence was supported in a material way by independent evidence. Nor was it disputed that there was evidence in the record of interview that was capable of corroborating Cullen in material respects.
The direction given is quite economical, and in some cases, might have benefited from expansion. However, in this particular case, it was, in my view, sufficient.
Mr Davis conceded in oral submissions that there were lies in the records of interview, at least to the extent that the contents of the records of interview were not internally consistent. He also conceded that there were, in the records of interview, bodies of evidence that were capable of being corroborative. He said that his submission about the possibility of misapplication of the principle went to the possibility that the jury may have wrongly used lies as supporting an inference of guilt.
He said that it was not a case where an Edwards[48] direction was sought. He accepted that an appropriate Zoneff[49] direction had been given but submitted that the learned trial judge should also have given a more detailed direction as to particular evidence that could be corroborative evidence or was not capable of being corroborative evidence. The accomplice warning was nullified by the failure to do so, having regard to the fact that the taped records of interview were of about 13 hours duration.
[48]Edwards v R (1993) 178 CLR 193.
[49]Zoneff v R (2000) 200 CLR 234.
There is no immutable rule that any particular approach should be taken or any particular content included when giving a warning with regard to corroboration. Cases such as Conway v The Queen (2000) 98 FCR 204 at 256 and R v Bellino [1993] 1 Qd R 521 at 531-532 show that it can, in cases where there is lengthy evidence, be sufficient to give a broad indication of the sort of evidence which may be treated as corroboration and, if thought desirable, an indication of the areas of the evidence in which it may be found without more specific elaboration.
In the particular circumstances of this case, I am not persuaded that the direction given was inadequate. The jury would have clearly understood from the direction given that lies they found to have been told by the appellant could not be used to corroborate Cullen’s evidence.
Grounds 4 and 5
Mr Davis’ proposition with respect to ground 4 was that there was too a broad a focus on the summing up with regard to sections 7, 8, and 9. The concentration should have been on whether the appellant had aided, under s 7(b), or counselled, under s 7(d), the relevant act, and under s 8, whether the relevant act was a probable consequence of the prosecution of the unlawful common purpose. He accepted that the act of killing with the knife was the relevant act. He submitted, essentially, that the focus in the summing up was more on the commission of a generic offence of murder than on the question that he submitted was appropriate.
He relied on the approach derived from R v Keenan [2007] QCA 440 which drew on The Queen v Barlow (1997) 188 CLR 1 and R v Brien and Paterson [1999] 1 Qd R 634 and R v Johnston [2002] QCA 74. While there was a formal submission by the Crown that Keenan was wrongly decided, the argument was not developed beyond that. Mr Martin submitted that, in any event, proper application of the principle to be derived from Keenan meant that the directions were appropriate. It therefore became of fundamental importance to consider the proper character of the “offence” for the purpose of s 7(b), and s 7(d) subject to s 9. In the case of s 8 it became necessary to consider what the common intention to prosecute an unlawful purpose was and whether the offence committed in the prosecution of the unlawful purpose was of such a nature that its commission was a probable consequence of its prosecution.
With regard to those issues and the directions given, I have had the opportunity to read in draft form, McMurdo P’s reasons and I am in agreement with what has been written. For that reason, ground 4 is in my view not made out.
For the reasons given by McMurdo P and on the basis of the survey of the evidence earlier in these reasons, I am satisfied that the conviction is not unsafe and unsatisfactory. Ground 5 also fails.
Order
The appeal against conviction should be dismissed.
ATKINSON J: I agree that the appeal should be dismissed for the reasons given by the President.
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